This is а declaratory action brought to determine the rights of Stratford [New Hampshire] School District (“Stratford”), insured under a “claims-made” errors and omissions policy issued by Employers Reinsurance Corporation (“Employers”). Both parties movеd for summary judgment, and the court ruled for Stratford. On this appeal Employers asserts that Stratford’s claim for coveragе for a suit brought on behalf of Crystal Buffington, post, matured within the policy exclusion definition prior to the policy’s issuance, and thаt, in any event, the policy was voidable because of false answers in the application. We affirm.
Starting at thе beginning, we accept the facts, recited in Employers’ brief as undisputed, most favorable to it.
Morrissey v. Boston Five Cents Savings Bank,
His next employer was the Lakeway Elementary School in Littleton, New Hampshire. According to one of his students there, Crystal Buffington, he began sexually molesting her during the fall of 1990 and continued to do so until the fall of 1992. In 1993 thе Manchester Union Leader reported this, although not identifying Crystal, and asserted that the Department of Education wаs investigating charges that Hikel had sexually .abused students when he taught in Littleton. For present purposes we assume that this cаme to Stratford’s attention. Thereafter, on October 3, 1993, a Grafton County Grand Jury issued a subpoena in connection with аn investigation of criminal sexual misconduct of Harry Hikel in the Lit-tleton School District, seeking Stratford’s records on Hikel. Stratfоrd received the subpoena on October 4. On October 8 it applied for the present policy.
While obviously the subpoena was a strong reminder that other such conduct might occur, the question is whether it suggested to Stratford (of which thеre is no evidence), or should have suggested, something more immediately troublesome. So contending, Employers complains — in terms of warranty — of Stratford’s negative answers in the policy application to questions 25 and 26:
25. Has the applicant, Board and/or its employees been involved in or have any knowledge of any pending federal, state or local legal actions or proceedings, including EEOC, against the entity, its board members, or employees within the last ten years? If yes, attach details stating nature of claim, date of claim, loss date, loss payments and disposition, carrier handling claims, etc.
26. Are there any circumstances indicating the probability of a claim or action known by any person to be covered by this insurance? If yes, attach details.
In view of the lack of analysis in Employers’ brief we regard 25 as being included in 26 and ask what claims, or “circumstances,” to quote question 26, affecting Stratford, the subpoena might be thought to suggest. Certainly no criminal proceedings. Nor could it be thought that Stratford’s former students were attempting to reactivate a cause of action arising from behavior that had occurred a decade ago outside of Littleton. Very likely Hikel was charged with new conduct and the grand jury, before indicting, wished to look at the whole picture. Nothing more had yet happened. But might some imaginative lawyer representing some student in connection with this new conduct, think of claiming *47 against Stratford for not having published 2 Hikel’s prior behavior? Anything is possible, but how likely, let alone probable?
Employers cites no authority contradicting our belief that a personal claim would be wholly frivolous. The New Hampshire court’s refusal to recognizе such rights even in the statute cited supra, n. 1, confirms this. If an insurance applicant is told he has to conceive of, and report, every possibility that someone “might” (Employers’ brief) bring a frivolous law suit, Employers’ solicitors would starve. It is because there are possibilities that people take out insurance. The application announced the standаrd for reporting — not possibility, but probability.
The application, however, was not the only standard-setter. The policy itself, by its terms, provides that it does not cover if “the Insured ha[d] become aware of a proceeding, event оr development which has resulted in or
could
in the future
result
in the institution of a claim against the Insured_” (Emphasis supplied.)
“Possibly
could result?”
“Reasonably
could result?”
3
“Probably
could result?” Even apart from the principle that ambiguities in insurance contracts are to be resolved against the insurer,
Trombly v. Blue Cross/Blue Shield of New Hampshire-Vermont,
Finally, Employers’ makes a claim of malice. This requires no comment.
Affirmed.
Notes
. This statute contains no languаge giving causes of action to children who could prove personal injury that might have been avoided had it been observed. In
Marquay v. Eno,
. At the risk, incidentally, of incurring a claim for defamation, depending оn how the duty is conceived.
. The New Hampshire case from which the court drew the more limited word “reasonable” involved different policy language.